ABSTRACT:

This book contrasts two different approaches to mediation. The
first is the problem solving approach which emphasizes finding
solutions to problems and generating mutually-acceptable
settlements. This kind of mediation, which has become dominant,
tends to be quite directive and settlement oriented. The second
approach is the transformative approach which emphasizes
empowerment and recognition as primary goals, not settlement.
Empowerment means empowering parties to define issues and to seek
solutions on their own. Recognition means recognizing the other
party's needs and interests, and better understanding the other
party's perspective. It does not mean having one's own view
recognized (though that usually happens). As described by the
authors, transformative mediation "helps parties recognize
and exploit the opportunities for moral growth inherently
presented by conflict" (pg. 12). This approach has received
less and less emphasis over the years, as the field of mediation
has developed. However, Folger and Bush argue that it should
become the dominant mode of mediation in the future.

Although the book is not a practical guide to transformative
mediation, it contains recommendations on how to exercise this
approach in mediating conflicts. The authors offer several case
studies to illustrate the transformative potential of mediation.
The ideas presented in the book will be of interest to those
working in the field of conflict resolution and mediation as well
as people whose work involves situations where the ability to
recognize and use the positive functions inherent to conflicts is
essential.

Chapter One is entitled "The Mediation Movement: Four
Diverging Views". Here Bush and Folger present four views or
"stories" which describe the field of mediation. The
first, most commonly espoused, story is the "satisfaction
story." This story says that mediation is better than
adversarial dispute resolution because it uses collaborative and
integrative approaches to reach win-win solutions that satisfy
the needs of all parties, not just one. This story touts
flexibility, informality, and consentuality as benefits of
mediation. Reduction of economic and emotional costs is also seen
as a benefit.

The "social justice story" suggests that mediation
is an effective way of organizing individuals around a common
interest, thereby empowering them to obtain social justice and
limit exploitation. By helping parties to solve problems by
themselves, mediation reduces dependency of lower power groups,
especially when used for self-help by grassroots community
organizations.

The "transformation story" says that mediation is a
unique process because it allows the parties to transform
themselves and society as a whole by defining problems and goals
in their own terms. By working themselves to identify solutions,
or even deciding to not resolve a conflict, parties become
empowered. They usually also come to understand the views of the
other party in the process.

The final story is the oppression story. This story argues
that mediation is dangerous because of its informality and
consensuality as it allows the stronger party to manipulate the
weak. It also allows mediators enormous amounts of power to
manipulate the outcome in the way they wish. The oppression story
also charges that, since mediation does not follow precedent or
necessarily concern itself with the public interest, it results
in the disaggregation and privatization of class conflicts and
public interest problems. This theory essentially charges that
"the mediation movement has helped the strong to divide and
conquer." (pg. 23).

Chapter Two explains how, as mediation developed over the
years, it began to focus increasingly on party satisfaction and
settlement. The authors describe the influence this orientation
has on several levels: the individual practice of mediators,
institutional policies (which emphasize quick, highly-directed
mediations designed to resolve cases as quickly and inexpensively
as possible), and on people's perception of the ability of
mediation to impact societal problems.

The satisfaction story became dominant, according to Folger
and Bush, because it corresponded to the most common "world
view" or "orientation" to conflict. This is the
notion that conflict is a problem that needs to be solved.
Conflicts are usually seen to be "real or apparent
incompatibility of parties' needs or interests" (pg. 56).
Problem solving allows parties to work together to find ways of
satisfying all of the parties' needs or interests or coming
sufficiently close to that goal that the solution is agreeable to
all.

This world view--and this approach to mediation--both have
limits, which are discussed in Chapter 3. These limits are
inherent in the mediator role if the mediator operates under the
mandate to define and solve problems. This mandate creates three
patterns of mediator conduct. First, mediators engage in
labeling. They tend to decide early on what the case is about and
how it should be framed in order to make it manageable. Second,
mediators tend to be directive in defining settlement terms.
Third, they tend to drop issues that cannot be easily handled
within the problem solving approach. Relational or identity
issues, for instance, are dropped because they are too intangible
to deal with. Folger and Bush argue that "The type of
influence embodied in those patterns shifts the focus away from
mutual satisfaction of needs as the parties define them. The
effect of the shift in focus is to undermine the problem-solving
enterprise at its very core." (pg. 70). "The evidence
suggests both that current practice generally follows the problem
solving approach and that problem solving mediation does not do a
good job of solving problems at all. . . . "The aggregate
result," they go on to say, "is not more satisfaction
and justice but less" (pg. 74).

Chapter Four presents Bush and Folger's transformative
approach to mediation, which stresses the concepts of empowerment
and recognition. In this chapter, they describe empowerment as it
refers to goals, options, skills, resources, and decision-making.
Empowerment with respect to goals means that a party understands
what his or her goals and interests are and that they are
important. Empowerment with relation to options means that the
parties understand the range of options available to them and
realize, regardless of constraints, that there are choices to be
made and the control over the choices is theirs' alone.
Empowerment with reference to skills involves adding to one's
skills in conflict resolution including listening, communication,
organizing and analyzing issues, presenting arguments, and
brainstorming solutions. Empowerment with respect to resources
means gaining new awareness of resources already in one's power,
learning how to use one's resources more effectively and
obtaining additional resources if necessary. In this respect, it
includes realizing that you hold something of value to the other
party, and an ability to communicate or persuade effectively.
Empowerment with respect to decision making means the party uses
good decision-making skills to make decisions about settlement
options and, indeed, whether even to settle the conflict at all.
"When these kinds of things occur within mediation, the
party experiences a greater sense of self worth, security, self
determination and autonomy" (pg. 87).

Recognition in this book is something that is given more than
something that is received. Recognition can be given in thought,
words, or actions. Giving recognition in thought involves
releasing oneself from one's own viewpoint, even temporarily, and
trying to see things from the other party's perspective. Giving
recognition in words involves openly acknowledging the
understanding of the other party's position or view. Giving
recognition in action means changing ones own conduct to
accommodate the other person or the other side. Recognition,
however, does not mean reconciliation. "Recognition is a
much more modest, practical and obtainable objective in a wide
range of situations and this modest objective has very real and
substantial value. It is a mistake to accept a "threshold of
value" argument that suggests that nothing short of complete
reconciliation has any value in terms of how the parties relate
to each other. This argument misses the point that in
transformative moral growth terms there is a continuum of value.
Reconciliation may stand at the top but it does not obviate the
value of every lower point on the continuum. The recognition
objective is concerned with the whole continuum." (pg. 97)

Just as problem-solving mediation involves three typical
patterns of mediator conduct, transformative mediation does as
well. In transformative mediation the typical patterns are (1)
micro-focusing on parties contributions to the dialogue (as
opposed to quickly labeling the conflict as being a particular
type), (2) encouraging parties' deliberation and choice making
(as opposed to being directive) and (3) encouraging perspective
taking where you frame and reframe arguments in an effort to lead
parties to recognition of the other party, instead of dropping
relational issues, as is done in problem-solving mediation.

Since these transformative patterns are so inherently
contradictory to the approaches of problem-solving mediation, the
two approaches cannot be successfully combined, according to Bush
and Folger. A problem-solving mediator cannot follow the
hallmarks of transformative mediation and still use his or her
standard "bag of tricks" to be sure to get a
settlement. Nor can the transformative mediator use the tricks of
the trade to encourage empowerment and recognition, while
pursuing the goal of settlement. Mediators must choose one
approach or the other and follow that one alone.

In the second half of the book, Folger and Bush give detailed
examples of how transformative mediation would work in practice.
Chapter Five presents an example of how a mediator implementing
the problem solving approach will tend to overlook the
possibilities for personal growth and transformation of the
parties. In a chapter Six, the authors present a case study of a
landlord-tenant dispute in which the mediator was able to
recognize and use transformative opportunities throughout the
mediation session. Chapter Seven offers the analysis of the
mediator's moves in the landlord-tenant case and describes in
more general terms how transformative mediation can be applied.
The chapter contains an excellent "map" of the process
and a table of transformative "signpost events."

Chapter Eight discusses potential pitfalls of the
transformative approach, and gives guidance about ways to avoid
them. These pitfalls include thinking that
"empowerment" means mediator passivity, mediators
pushing too far for empowerment and/or recognition, focusing on
empowerment alone or recognition alone, protecting the parties
too much--or too little--or losing sight of the transformative
purpose. These pitfalls are easy to fall into, especially for
mediators who are just learning the transformative approach after
having been trained and experienced in the problem-solving
orientation. But awareness of these pitfalls makes them easier to
avoid.

Chapter Nine contains a discussion of the underlying values of
transformative and problem solving approaches and explains how
these values are linked to different worldviews: the
individualistic, the organic, and the relational. The
individualistic world view sees the individual as being of
primary importance. The primary goal, in this view, is the
self-fulfillment of the individual's interests and needs.
Autonomy, independence, individuality, and self-satisfaction are
primary objectives. This world view contrasts with the organic
world view, which sees the person as a part of a larger social
entity. That larger entity is of primary importance, not the
individual or the individual's needs. Thus the supreme value is
the collective welfare, and service to others and to the whole is
seen as more important than the pursuit of personal interests and
needs. Both of these world views are then compared to the
relational world view, which is, in essence a combination of the
other two. In the relational view, people are recognized as
separate, but with the potential for a connection to others and
the larger social whole. Both autonomy and connection are seen as
important goals. This, of course, is the world view that leads to
(and from) the transformative approach, while the individualistic
world view is connected with the problem-solving approach to
mediation.

Chapter Ten looks at ways of advancing transformative practice
in mediation training and at the institutional level. Since this
approach to mediation is not yet popular, this chapter looks more
at what can and could be done, rather than what is being done at
the current time.